INFORMATION FROM THE CONTRACTING / EXTENSION STATES
LU Luxembourg
New patent legislation - summary
On 1 January 1998, the Law of 20 July 1992 amending the patent system1 entered into force, together with two implementing regulations (Grand-Ducal Regulation of 17 November 1997 on the procedure and administrative formalities relating to patents2 and Grand-Ducal Regulation of 17 November 1997 fixing the fees and charges for patents and supplementary protection certificates3).
1. Main changes compared with the previous system (Law of 30 June 1880):
- the conditions for patentability have been brought into line with the provisions of Articles 52 to 57 EPC;
- the right to the patent lies with the inventor or his assignee, the applicant being deemed to be entitled to exercise the right to the patent;
- the law contains provisions on employee inventors and the system for co-ownership of patents;
- the exclusive right takes effect on the date the patent is granted, provisional protection being afforded for the period between publication and grant;
- the extent of protection has been adapted to Article 69 EPC;
- the penal sanctions for infringement have been repealed;
- introduction of compulsory licences for failure to exploit, ex officio licences in the public interest and licences in respect of dependent patents;
- licences of right: a patent holder who agrees to grant licences to interested parties will benefit from a reduction in renewal fees;
- rules for the right of prior use and personal possession of the invention;
- recording of contractual licences in the patent register.
2. The national patent grant procedure has also been amended;
- languages: a patent application may be filed in French, German or English (with a translation of the claims in French or German) or in Luxemburgish (with a full translation);
- publication of the application after 18 months, with the possibility of early publication;
- opportunity for third parties to make observations;
- granting of the patent only after a prior art search report has been drawn up or validated; the report must be requested or supplied, as the case may be, within a period of seven years;
- possibility of amending the technical documents during the procedure;
- principle of unity of invention: opportunity to file divisional applications;
- introduction of domestic priority;
- procedure for restitutio in integrum in the event of failure to meet a deadline.
3. The following new rules for maintaining patents should be noted:
- a new scale of fees will apply as from 1 January 1998;
- transitional rule: the fees due prior to 1 January 1998 fall under the old system, even if they are paid after that date;
- renewal fees have been fixed for supplementary protection certificates;
- uniform period of grace of six months for all types of patent;
- if the patent lapses because of non-payment, a request for re-establishment of rights can be filed up to 20 months after the patent has lapsed;
- obligation to indicate a postal address in Luxembourg to which receipts for the payment of renewal fees can be sent.
This new legislation will be amended in February 1998.
The texts (in French) of the law and the regulations are available on the Internet (www.etat.lu/EC). Further information can be obtained from: Ministère de l'Economie (M. Claude Sahl), Tel. : 478-4119, Fax 22 26 60.